Roque De La Fuente v. Kim Wyman

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 15, 2019
• Docket: 18-35208
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 15 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROQUE DE LA FUENTE, AKA Rocky, No. 18-35208

Plaintiff-Appellee, D.C. No. 3:16-cv-05801-BHS

v. MEMORANDUM* KIM WYMAN, in her official capacity as the Secretary of State of the State of Washington,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Argued and Submitted April 11, 2019 Seattle, Washington

Before: W. FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.

Kim Wyman, the Secretary of State for the State of Washington, appeals the

district court’s finding that Washington’s notice requirement for minor party and

independent candidates’ political conventions, Wash. Rev. Code § 29A.56.620,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. violates the First and Fourteenth Amendments. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we reverse and remand.

Plaintiff Roque De La Fuente was a minor party candidate for President in

2016 and sought access to Washington’s presidential ballot. Washington allows

minor party and independent candidates to access the ballot by holding a political

convention and acquiring a certain number of signatures. Wash. Rev. Code §§

29A.56.600; 29A.56.640(5). However, at least ten days before the convention, the

independent or minor party candidate must “publish a notice in a newspaper of

general circulation within the county in which the party or the candidate intends to

hold a convention.” Id. § 29A.56.620. De La Fuente argues that Washington’s

convention requirement contemplates only signature drives, not conventions, and

that requiring candidates to provide ten day’s notice before gathering signatures is

unduly burdensome and not justified by any relevant state interests.1

We analyze this question under the familiar sliding scale framework of

Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S.

428 (1992). The “rigorousness of [the] inquiry into the propriety of a state election

law depends upon the extent to which a challenged regulation burdens First and

1 Because the parties are familiar with the underlying facts, we describe them only briefly here. 2 Fourteenth Amendment rights.” Burdick, 504 U.S. at 434. A “severe” burden

must satisfy strict scrutiny while a “lesser burden” may be justified “by

demonstrating the state has important regulatory interests.” Ariz. Green Party v.

Reagan, 838 F.3d 983, 988 (9th Cir. 2016) (internal quotation marks omitted).

In this case, Washington’s notice requirement imposes only a minimal

burden on independent and minor party candidates’ free speech rights. Meeting

the notice requirement is relatively simple and inexpensive—at argument,

Washington’s counsel explained that publication of such a notice costs only $40 to

$80—and even without the notice, the candidate is free to communicate with

potential voters and otherwise engage in electioneering activities. Indeed,

independent and minor party candidates in Washington routinely satisfy the

convention and notice requirements. Wash. State Republican Party v. Wash. State

Grange, 676 F.3d 784, 794 (9th Cir. 2012) (in evaluating the burden, the court

looks to “whether reasonably diligent minor party candidates can normally gain a

place on the ballot, or if instead they only rarely will succeed” (internal quotation

marks omitted)).

Washington’s interests in transparency and electoral participation adequately

justify requiring candidates to provide notice in a local paper before holding a

political convention. Washington undisputedly has an interest in ensuring that its

3 electorate is informed and engaged. See Anderson, 460 U.S. at 796 (“There can be

no question about the legitimacy of the State’s interest in fostering informed and

educated expressions of the popular will in a general election.”). And requiring

notice about independent candidate and minor party conventions provides voters

with the opportunity to participate and potentially learn about less well-publicized

candidates.

De La Fuente claims that the conventions at issue need only be signature-

gathering drives, rather than conventions qua conventions, but that is inconsistent

with the statutory text, which defines a convention as “an organized assemblage of

registered voters representing an independent candidate or candidates or a new or

minor political party, organization, or principle.” Wash. Rev. Code § 29A.56.600

(emphasis added). De La Fuente has provided no evidence or authority that

Washington treats signature drives as sufficient under § 29A.56.600. And

accepting that independent and minor party candidates must hold an actual political

convention,2 we cannot say that Washington wholly lacks any interest in requiring

that those conventions are publicized to registered voters.

2 De La Fuente does not challenge the convention requirement; he challenges only the notice requirement. 4 It may be that Washington’s requirement is somewhat antiquated, and that

publishing newspaper notices does little in this day and age to alert Washington’s

voters to ongoing political activity. But because the burden imposed by the notice

requirement is “slight,” Washington must show only that the law furthers

“important regulatory interests[.]” See Wash. State Republican Party, 676 F.3d at

793-94. And the law has long relied on newspaper publication as an acceptable

form of broad-based notice. See, e.g., Wash. Rev. Code § 4.28.110 (civil service

by publication); Wash. Rev. Code § 6.21.030(2)(b) (real property sale). As such,

even the modest notice function served by newspaper publication is enough to

justify the minimal intrusion on candidates’ free speech rights occasioned by the

notice requirement. To have an informed electorate, see Anderson, 460 U.S. at

796, Washington needs to provide notice to its electorate in some way, which is

precisely what the challenged statute does.

Accordingly, we REVERSE and REMAND to the district court with

instructions to enter summary judgment for Washington’s Secretary of State.